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COURT OF APPEALS OF NEW YORK 1969.NY.41295 <>; 249 N.E.2d 386; 24 N.Y.2d 556 decided: April 23, 1969. ANTHONY MANGINI, AS GUARDIAN AD LITEM OF DEBORAH MANGINI, AN INFANT, ET AL., APPELLANTS,v.HOWARD E. MCCLURG ET AL., RESPONDENTS Mangini v. McClurg, 27 A.D.2d 194, reversed. Counsel William V. Canale for appellants. Alfred L. Simon for Howard E. McClurg and another, respondents. Counsel John C. Mannix for John Peroha, Jr. and another, respondents. Breitel, J. Chief Judge Fuld and Judges Scileppi, Bergan, Keating and Jasen concur; Judge Burke concurs in a memorandum. Author: Breitel

Mangini v. McClurg, Breitel, J. Chief Judge Fuld and Judges Scileppi, Bergan, Keating and Jasen concur; Judge Burke concurs in a memorandum.

Author: Breitel

 Plaintiffs, infant passenger and her father, appeal in an action to set aside a general release and to recover damages for the infant's personal injuries arising out of a collision of automobiles owned and driven by the defendants. Special Term denied defendants' motion for summary judgment. The Appellate Division in an opinion unanimously reversed "on the law and the facts", granted defendants summary judgment and dismissed the complaint (27 A.D.2d 194).

Plaintiffs, Anthony Mangini, father of the injured infant, in his own right, and Deborah Mangini, through her father as guardian ad litem, seek to set aside general releases given to the Perohas, owner and driver of the car in which Deborah was a passenger, and the McClurgs, owner and driver of the other car. The Manginis alleged that the releases were entered into under a mutual mistake of fact as to the extent of her injuries, and that the parties did not intend to discharge liability for unknown injuries. Plaintiffs also allege that, if the defendants knew of the injuries, then the releases were procured through fraud and misrepresentation.

The existence of a disputed issue of fact depends upon what, as a matter of law, constitutes a mistake of fact as to an unknown injury and when, also as a matter of law, subsequent discovery of unknown injuries justifies the setting aside of a general release. It is concluded that there are issues of fact both as to the parties' knowledge of the injuries suffered, and their intention to release liability for unknown injuries, and that summary judgment should have been denied.

The affidavits disclose the following facts. On February 26, 1963 Deborah Mangini, approximately 18 years of age, was a passenger in the Peroha automobile when it collided with the McClurg automobile.

Deborah was examined the day of the accident by Dr. Harrington, at which time she said she had been riding in the front seat of the Peroha car, and that upon the collision "she was thrown to the floor of the car striking her face on the dashboard and injuring her knees and her lower back. "In addition to head and knee injuries, Deborah complained of "pain and tenderness of the lumbar spine with pain radiating down the posterior left thigh. "In April, 1963 she was again examined by Dr. Harrington, and again complained of the pain in the lower back and left posterior thigh. These symptoms Dr. Harrington attributed to "lumbo-sacral strain based upon nerve-root irritation."

On May 9, 1963 Deborah was examined by Dr. Schlesinger. She told him that the lower back pain had become more severe. He diagnosed her condition as a "chronic derangement of the low lumbar spine, most likely discogenic in origin at the L5-S1 disc." He noted that he would like to check her again in a month, but no additional examination was made.

Deborah testified in pretrial examination (of which only incomplete excerpts are supplied) that she had experienced pain, "on and off", in the area of her left hip since the day after the accident, as well as a swelling in the upper part of her left thigh. She also heard a "hitch" or a "catch" or a "click" in the region of her left hip and commented to her father about it. A lawyer, Mr. Rossi, had been retained shortly after the accident to represent Deborah and her father. Eventually it was decided to settle the claims. On May 20, 1963 Deborah was examined by a physician for the insurer of the Peroha vehicle, Dr. Magovern. He recorded that Deborah stated that as a result of the accident her lower back and left hip became stiff, and that she complained that "the left hip seems to catch, or click, frequently, and the lower back bothers on getting out of a chair." He diagnosed a swelling on the outer side of the center of the left thigh as a "resolving, or absorbing, hematoma." He concluded that there was "[moderate] strain of the superficial muscles of the lumbar area" and that "[there] will be no permanency. A period of one week total disability with an additional two weeks partial disability could be expected."

Plaintiffs' lawyer, Mr. Rossi, made contact with a claims agent of one of the insurers in June, 1963. The agent was given the reports of Drs. Harrington, Schlesinger, and Magovern and negotiated a settlement with Mr. Rossi for all defendants. The Manginis were to receive a total of $1,250 plus medical expenses of $198.28. Mr. Rossi obtained the necessary court order of approval for the infant Mangini, and prepared the releases.

On June 29, 1963 the Supreme Court, Saratoga County, authorized a compromise of Deborah Mangini's claim for $1,000. On July 1, 1963 general releases were executed, releasing the defendants "of and from all, and all manner of action and actions * * * damages * * * and demands whatsoever, in law and equity * * * ever had, now have * * * or * * * shall or may have * * * by reason of any matter * * * from the beginning of the world to the day of the date of these presents. And more particularly for any and all claims for personal injuries, medical expenses, loss of wages [claims for expenses and loss of services] as a result of an automobile accident on February 26, 1963".

Just about a half-year later, in December, 1963, Deborah was examined by Dr. Gazeley. She complained, as she had before the settlement, of the clicking and "a hitching sensation" in the area of the left hip. Upon X-ray examination, Dr. Gazeley determined that Deborah "had suffered a condition known as osteochondritis dissecans of the left hip. There was an avascular necrosis of the femoral head of the left hip * * * The condition * * * was brought about presumably by a blow to the knee area which stressfully forced the femoral head into the socket damaging the blood supply to the femoral head." "The 'hitch' would come from a gradual flattening of the femoral head and would develop only after at least six months from the time of injury. The infant plaintiff must have been mistaken when she said she noticed the 'hitch' so soon after the injury."

Drs. Gazeley, Schlesinger, and Harrington all agreed that examinations before the settlement could not have revealed this later diagnosed condition, although the causative injury was sustained at the time of the accident.

The hip condition is alleged to have been extremely painful, to have required extensive surgery, and to have resulted in permanent injury. The complaint seeks a total of $110,000, and covers both the "unknown" injuries and injuries that were apparently considered at the time of the release.

It is true that a general release is governed by principles of contract law. There is little doubt, however, that its interpretation and limitation by the parol evidence rule are subject to special rules. These rules are based on a realistic recognition that releases contain standardized, even ritualistic, language and are given in circumstances where the parties are sometimes looking no further than the precise matter in dispute that is being settled. Thus, while it has been held that an unreformed general release will be given its full literal effect where it is directly or circumstantially evident that the purpose is to achieve a truly general settlement (Lucio v. Curran, 2 N.Y.2d 157), the cases are many in which the release has been avoided with respect to uncontemplated transactions despite the generality of the language in the release form (e.g., Cahill v. Regan, 5 N.Y.2d 292; Mitchell v. Mitchell, 170 App. Div. 452, 456; see, also, Simon v. ...

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